By Mr. LEAHY: S. 1739. A bill to amend the material witness statute to strengthen procedural safeguards, and for other purposes; to the Committee on the Judiciary. Mr. LEAHY. Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material witness warrant, the government must establish that the witness has information that is material to a criminal proceeding, and that it may become impracticable to secure the witness's presence at the proceeding by a subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured by deposition or appearance in court. The material witness law was intended to ensure the appearance of witnesses in those rare cases where they might otherwise flee to avoid testifying in a criminal proceeding. This authority is an important tool for our government's law enforcement duties, but it must be exercised responsibly. As the Court of Appeals for the Second Circuit noted in 2003, in the case of United States v. Awadallah, ``It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.'' Since September 11, 2001, however, that is exactly what the government has been doing. Indeed, senior Administration officials, including our current Attorney General, have admitted that the government routinely uses material witness warrants to detain suspects in the so-called war on terror. A report released this summer by Human Rights Watch and the American Civil Liberties Union identifies 70 men, including more than a dozen citizens, whom the Department of Justice

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arrested as material witnesses in connection with its terrorism investigations. Many were never brought before a court or grand jury to testify for the simple reason that they were viewed not as witnesses, but as suspects. The evidence against these suspects was often flimsy at best, and would never have sufficed for criminal arrest and pre-trial detention. This twisting of a narrow law designed to secure testimony into a broad preventive detention authority has resulted in some notorious abuses. Just days after 9/11, the FBI arrested eight Egyptian-born men in Evansville, IN--one a naturalized American citizen--as material witnesses, based on a bogus tip that they planned to fly a plane into the Sears Tower in Chicago. The men were held for more than a week in solitary confinement before being released. Many months later, the FBI issued a rare public apology to these men. That apology, while necessary, could not repair the damage that had been done to them and their families in the form of lost business, tainted reputations, and the accusing stares of their friends and neighbors. The case of Abdallah Higazy further highlights the danger that can occur when this authority is abused. Shortly after 9/11, the 30-year-old Egyptian graduate student with a valid visa, was picked up after a security guard at a hotel located across the street from Ground Zero claimed to have found an aviation radio in the room where Higazy had stayed on 9/11. Higazy was held for more than a month in solitary confinement until he ultimately confessed that the radio was his. Higazy was then charged with lying to the FBI for initially denying possession of the radio. These charges were dropped after the true owner of the radio, an American pilot, went to the hotel to claim it. In another, higher profile case in May 2004, Portland attorney Brandon Mayfield was arrested as a material witness in connection with the Madrid train bombing. An email sent from the Portland FBI office to the Los Angeles FBI office the day before Mayfield's arrest refers to him as a ``Moslem convert'' and notes as a ``problem'' that there was not enough evidence to arrest him for a crime. After spending two weeks in prison, Mayfield was released and the FBI was expressing regret about the erroneous fingerprint match that led to his arrest. These and other examples of post-9/11 misuse of the material witness statute are documented in the HRW/ACLU report. As the report shows, such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants, including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law ``threatens U.S. citizens and non-citizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.'' The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended, to obtain testimony, and not to hold criminal suspects without charge when probable cause is lacking. First, the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law, a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become ``impracticable.'' Under the bill, there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required, or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required. Second, the bill imports several due process safeguards from the Federal Rules of Criminal Procedure relating to the arrest and arraignment of criminal defendants. Among other things, the bill requires that a material witness warrant specify that the testimony of the witness is sought in a criminal case or grand jury proceeding, and command that the witness be arrested and brought to court without unnecessary delay. The warrant must also inform the witness of his right to retain counselor or request that one be appointed. The right to counsel is already guaranteed to material witnesses under the Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the witness from erroneous, unnecessary, and prolonged incarceration. The bill further provides that, upon arresting a material witness, the government must provide him with a copy of the warrant or inform him of the warrant's existence and purpose. A material witness must be brought before a judge ``without unnecessary delay''--a term that has been strictly interpreted when applied to the criminally accused. The initial appearance must be in the district of arrest or an adjacent district. At the initial appearance, the judge must inform the witness of the basis for his arrest and of his right to counsel. The judge must also allow the witness a reasonable opportunity to consult with counsel. The judge must then determine whether the witness should be released or detained pending the taking of his testimony. Third, the bill establishes clear procedures for material witness detention hearings. Current law provides that material witnesses shall be treated in accordance with 18 U.S.C. 3142, which governs the release or detention of defendants pending trial. Section 3142, however, contains many factors that are not applicable to material witnesses. For example, courts have held that a material witness may not be detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63 n.15.) The bill clarifies that in detention hearings for material witnesses, flight risk is the only relevant factor. A court shall order a material witness detained only if no condition or combination of conditions will reasonably assure the appearance of the witness as required. As under current law, no witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. In determining whether a material witness should be released or detained, the court shall take into account the available information concerning the history and characteristics of the witness, and may also consider challenges to the basis of the warrant. Fourth, the bill establishes the ``clear and convincing evidence'' standard used in other civil detention contexts for material witness detentions. Few courts have directly examined what standard of proof should be required of the government to demonstrate that no conditions of release can reasonably assure a witness's appearance. While the lower ``preponderance of the evidence'' standard may suffice for pre-trial detention of defendants who pose a risk of flight, in the case of defendants there has also been a finding of probable cause to believe the person committed a crime. In the case of a witness, where there is no probable cause to believe the person committed a crime, the usual grounds for fearing flight--the defendant's aversion to risking a guilty verdict and attendant sentencing--are not present. Fifth, the bill imposes reasonable but firm time limits on the detention of material witnesses. Current law sets no firm limit on how long a witness may be incarcerated before being presented in a criminal proceeding or released. This has resulted, according to the recent report, in many witnesses enduring imprisonment for two or more months, and in one case for more than a year. Under my bill, a material witness may initially be held for not more than five days, or until his testimony can adequately be secured, whichever is earlier. That period may be extended for additional periods of up to five days, upon a showing of good cause for why the testimony could not adequately be secured during the previous five-day period. The total period of detention may not exceed 10 days for a grand jury witness, or 30 days for a trial witness, and in no case may a witness be held any longer than necessary to secure his testimony. Sixth, in recognition of the fact that material witnesses are not charged with any offense, the bill requires that they be held in a corrections facility that is separate, to the extent practicable, from persons charged with or convicted of a criminal offense, and under the least restrictive conditions possible.

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Finally, to facilitate congressional oversight, the bill requires the Justice Department to report annually on the use of the material witness law. Since 9/11, the Department has withheld information relating to material witnesses on the theory--in my view, a flawed theory--that such information is covered by the grand jury secrecy rule. It is hard to imagine how the release of generalized data, such as the aggregate number of people detained as material witnesses, could damage any reputational interest or any of the other interests protected by Rule 6(e). The recent, detailed report on post-9/11 uses of the material witness statute leaves no doubt that the law has been bent out of shape, with real consequences for citizens and non-citizens alike. My bill will restore the law to its original purpose and prevent future abuses. I urge its speedy passage. I ask unanimous consent that the text of the bill be included in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows:

S. 1739

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELEASE OR DETENTION OF A MATERIAL WITNESS.

(a) Amendments to Title 18.--Section 3144 of title 18, United States Code, is amended to read as follows:

``Sec. 3144. Release or detention of a material witness

``(a) Arrest of Material Witness.-- ``(1) In general.--A judicial officer may order the arrest of a person as a material witness, if it appears from an affidavit filed by a party in a criminal case before a court of the United States, or by an attorney for the Government in a matter occurring before a Federal grand jury, that there is probable cause to believe that-- ``(A) the testimony of such person is material in such case or matter; and ``(B) the person has been served with a summons or subpoena and failed or refused to appear as required. ``(2) Exception.--A judicial officer may waive the summons or subpoena requirement described in paragraph (1)(B), if the judicial officer finds by clear and convincing evidence that the service of a summons or subpoena-- ``(A) is likely to result in the person fleeing; or ``(B) cannot adequately secure the appearance of the person as required. ``(b) Warrant for Material Witness.-- ``(1) Requirements.--A warrant issued under subsection (a) shall-- ``(A) contain the name of the material witness or, if the name of such witness is unknown, a name or description by which the witness can be identified with reasonable certainty; ``(B) specify that the testimony of the witness is sought in a criminal case or grand jury proceeding; ``(C) command that the witness be arrested and brought without unnecessary delay before a judicial officer; ``(D) inform the witness of the witness's right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; and ``(E) be signed by a judicial officer. ``(2) Execution of warrant.-- ``(A) Arrest of witness.--A warrant issued under subsection (a) shall be executed by arresting the material witness. ``(B) Warrant to be provided to witness.-- ``(i) In general.--Upon arrest, an officer possessing the warrant shall show such warrant to the material witness. ``(ii) Warrant not in possession of arresting officer.--If an officer does not possess the warrant at the time of arrest of a material witness, an officer--

``(I) shall inform the witness of the existence and purpose of the warrant; and ``(II) at the request of the witness, shall provide the warrant to the witness as soon as possible.

``(3) Return of warrant.-- ``(A) After execution.--After executing a warrant issued under subsection (a), an officer shall return the warrant to the judicial officer before whom the material witness is brought in accordance with subsection (c). ``(B) Unexecuted warrant.--At the request of an attorney for the United States Government, an unexecuted warrant shall be brought back to and canceled by a judicial officer. ``(c) Initial Appearance.-- ``(1) Appearance upon arrest.--A material witness arrested pursuant to a warrant issued under subsection (a) shall be brought without unnecessary delay before a judicial officer. ``(2) Place of initial appearance.--The initial appearance of a material witness arrested pursuant to a warrant issued under subsection (a) shall be-- ``(A) in the district of arrest; or ``(B) in an adjacent district if-- ``(i) the appearance can occur more promptly there; or ``(ii) the warrant was issued there and the initial appearance will occur on the day of the arrest. ``(3) Procedures.--At the initial appearance described in paragraph (2), a judicial officer shall-- ``(A) inform a material witness of-- ``(i) the warrant against the witness, and the application and affidavit filed in support of the warrant; and ``(ii) the witness's right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; ``(B) allow the witness a reasonable opportunity to consult with counsel; ``(C) release or detain the witness as provided by subsection (d); and ``(D) if the initial appearance occurs in a district other than where the warrant issued, transfer the witness to such district, provided that the judicial officer finds that the witness is the same person named in the warrant. ``(d) Release or Detention.-- ``(1) In general.--Upon the appearance before a judicial officer of a material witness arrested pursuant to a warrant issued under subsection (a), the judicial officer shall order the release or detention of such witness. ``(2) Release.-- ``(A) In general.--A judicial officer shall order the release of a material witness arrested pursuant to a warrant issued under subsection (a) on personal recognizance or upon execution of an unsecured appearance bond under section 3142(b), or on a condition or combination of conditions under section 3142(c), unless the judicial officer determines by clear and convincing evidence that such release will not reasonably assure the appearance of the witness as required. ``(B) Testimony secured by deposition.--No material witness may be detained because of the inability of the witness to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. ``(3) Detention.-- ``(A) No reasonable assurance of appearance.--If, after a hearing pursuant to the provisions of section 3142(f)(2), a judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of a material witness as required by this section, such judicial officer may order that the witness be detained for a period not to exceed 5 days, or until the testimony of the witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. ``(B) Extension of detention.-- ``(i) In general.--Subject to clause (ii), upon the motion of a party (or an attorney for the United States Government in a matter occurring before a Federal grand jury), the period of detention under subparagraph (A) may be extended for additional periods of up to 5 days, or until the testimony of a material witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. ``(ii) Limit.--The total period of detention under this subparagraph may not exceed--

``(I) 30 days, where the testimony of the witness is sought in a criminal case; or ``(II) 10 days, where the testimony of the witness is sought in a grand jury proceeding.

``(C) Good cause required.--A motion under subparagraph (B) shall demonstrate good cause for why the testimony of a material witness could not adequately be secured by deposition or by appearance before the court or grand jury during the previous 5-day period. ``(4) Factors to be considered.--A judicial officer, in determining whether a material witness should be released or detained-- ``(A) shall take into account the available information concerning the history and characteristics of the witness, including the information described in section 3142(g)(3)(A); and ``(B) may consider challenges to the basis of the warrant. ``(5) Contents of release order.--A release order issued under paragraph (2) shall comply with the requirements of paragraphs (1) and (2)(B) of section 3142(h). ``(6) Contents of detention order.--A detention order issued under paragraph (3) shall comply with the requirements of section 3142(i), provided that a judicial officer shall direct that a material witness be held-- ``(A) in a facility separate and apart, to the extent practicable, from persons charged with or convicted of a criminal offense; and ``(B) under the least restrictive conditions possible. ``(e) Report.-- ``(1) In general.--Notwithstanding any other provision of law, the Attorney General shall provide to the Committees on the Judiciary of the Senate and the House of Representatives an annual report regarding the use of this section by the United States Government during the preceding 1-year period. ``(2) Content of report.--A report required under paragraph (1) shall include-- ``(A) the number of warrants sought under subsection (a), and the number either granted or denied; ``(B) the number of material witnesses arrested pursuant to a warrant issued under subsection (a) whose testimony was not secured by deposition or by appearance before the court or grand jury, and the reasons therefore; and ``(C) the average number of days that material witnesses arrested pursuant to a warrant issued under subsection (a) were detained.''.

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(b) Amendment to Federal Rules of Civil Procedure.--Rule 46(h) of the Federal Rules of Criminal Procedure is amended to read as follows: ``(h) Supervising Detention Pending Trial.--To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.''.

React to this article in the Discussion Forum. Lawyer’s yore in Indianapolis, Indiana has it that there was an infamous physician who absolutely refused to honor a subpoena and testify at court. The judge would send the sheriff to fetch Dr. "No." But the presence of the law did not even slow the good doctor down. He would lock the front door and bolt out the back, escaping in his car. Naturally, this ploy only worked once or twice. Eventually the sheriff learned to post a deputy at the back door. Dr. No was collected and taken to court to testify. It is told that once on the witness stand, he was a cooperative and knowledgeable witness. Recently a young psychologist was served with a subpoena for a minor patient’s mental health record. In deference to the duty to hold the patient’s mental health record confidential, she refused to supply the record. The attorney seeking the record sent her an authorization for release of the record signed by the patient’s father, the non-custodial parent. She sought the legal advice of lay persons and an attorney for her insurance carrier. Everyone advised her not to release the records until the court so ordered.

The attorney scheduled a hearing on the matter. At the hearing the judge found the psychologist in contempt and ordered her to pay $700 in legal fees to the attorney seeking the record, for forcing him to request and prepare for a hearing on the matter unnecessarily. The law in the state in which the psychologist practiced stated custodial and non-custodial parents have equal access to his/her child’s health records. A health care provider was bound to release the child’s mental health records when served with the father’s authorization. Ignorance of the law was no excuse.

Physicians rightly complain that they are served with subpoenas for court testimony with little or no warning and without consideration of the physician’s obligation to his or her scheduled patients. Further, physicians are often asked for health records without proper authorization, forcing a decision to withhold the records, violate the patient-physician privilege of confidentiality, or consult an attorney. If the wrong decision is made, the physician risks contempt orders or a lawsuit filed by the patient. Some situations are complicated and will require advice of counsel. However, what follows are three simple rules which when put to use, will allow the physician to assess the situation and proceed in a lawful manner sometimes without consulting legal counsel.

Rule One: Do not ignore a subpoena. If properly issued and served, a subpoena has the full force of the law behind it. The first step is to determine whether you have a proper subpoena or a court order. A subpoena is a piece of paper, often a form, which is signed or stamped by the clerk of court or an attorney. Almost anyone can obtain a form subpoena stamped with the court clerk’s signature. An attorney can create a subpoena on a word processor. A subpoena differs from a court order. A court order has a case or cause number in the heading, is signed by a judge and is usually stamped "Filed," with the file date. It is important to know the difference in order to assess how to proceed. Courts have generally held that "bare" subpoenas are insufficient to obtain confidential medical records.

The next step is to determine whether the subpoena was properly served. In order for the service to be ironclad, it should be handed to the physician by a sheriff or other officer of the court. Then and only then can the person who served the subpoena testify in court that the physician received it. However, many subpoenas are served by regular or certified mail sent to the physician’s office. Someone other than the physician signs the return receipt. Arguably, at that point, no one can prove that the physician actually received the subpoena if the physician states he did not receive it. However, once the physician has actual knowledge of the subpoena, he would be committing perjury if he stated under oath that he did not receive it. The best course when a subpoena comes into one’s hands is to deal with it.

Rule Two: Do communicate and cooperate. Much time and frustration can be saved if the parties talk to one another. Ideally, the attorney should call the physician prior to serving a subpoena, talk to him or her about what testimony can be anticipated and make arrangements for dates and times that are as convenient as possible for the physician to appear at the trial. Unfortunately, many times lawyers serve first and talk later. One wonders at the wisdom of such behavior because it most likely will alienate the physician witness whose cooperation the attorney needs. To be fair, there are times and circumstances when the attorney cannot contact the physician prior to serving the subpoena, such as in the case of emergency hearings or a last minute discovery that the physician’s testimony is needed.

When the attorney has not contacted the physician, the physician should call the attorney. Perhaps the physician does not have the information the attorney seeks or cannot give an opinion that would be favorable to the patient’s case. The attorney may voluntarily withdraw the subpoena or excuse the physician from testifying. Inquire as to whether the patient’s records can be used instead of the physician’s testimony. Attorneys can stipulate that the patient’s records will be part of the court’s record, making the physician’s presence to introduce those records unnecessary.

Many times the attorney can and will arrange for the physician’s testimony to be taken in the form of a video deposition. This deposition can then be played in court for the judge or jury in lieu of the physician’s presence. Taped testimony allows for flexibility in the trial schedule and prevents multiple appearances if the trial is postponed at the last minute. If a video deposition is not possible, the physician can negotiate the most convenient time for his or her appearance. If the physician is truly unavailable for the hearing or trial, this should be communicated so that a continuance can be sought.

Cooperation takes all parties. If the matter cannot be resolved, then the physician may be forced to take legal action to have the subpoena quashed or the matter continued. An attorney can file an objection to the subpoena for several reasons, some of which will be discussed later. It is possible to have a subpoena quashed for the reason that it is unduly burdensome or unreasonable. This is often the case when the physician’s testimony is required in two days and he or she has scheduled patients or surgery.

Rule Three: Always consider the confidentiality of the patient’s records. The physician-patient privilege against disclosure of information the physician obtains as a result of the physician-patient relationship is ancient. This privilege belongs to the patient. However, the physician has the legal duty to invoke the privilege on behalf of the patient. It includes both written and unwritten information. A subpoena does not overcome the patient’s right to confidentiality. Therefore, whenever a physician receives a subpoena for records, (sometimes called a subpoena duces tecum) or for an appearance and testimony about the patient, the first consideration is whether the patient has consented to the release of the information sought. Even if the patient’s own attorney has requested the information, the physician must first be satisfied that the patient has consented to the disclosure.

The best way to verify that the patient consents to the physicians disclosure of information, in spoken or written form, is by obtaining an authorization for release of the information signed by the patient. This authorization should state specifically what information is to be released and to whom. It is also helpful if the release states the purpose of the disclosure. A physician can be assured that the release is intended to cover court proceedings if it states that, "the information is to be released to my attorney for use in my lawsuit against X." However, if the physician is only directed by the release to give the information to an attorney, the physician is not responsible for what the attorney does with that information.

A physician may obtain the consent of the patient verbally. This conversation should be recorded in the medical record at or near the time it occurs. State laws contain exceptions to the need for a patient’s release, i.e., in the case of child abuse or a grand jury investigation. An attorney may need to be consulted as to whether the subpoena falls into an exception to the need for a patient’s consent or court order. Further, a court may order the physician to release information about a patient, in spite of the patient’s objection. Such a determination would be made by a judge after review of the relevancy of the records to the lawsuit or, in the case of mental health or dangerous communicable disease information, after a hearing on the matter.

If a physician has not been satisfied that the patient consents to the release of confidential information, he or she should raise the issue in court before any questions about the patient are answered. At times the judge will consider the matter immediately and order the physician to proceed to testify. In such an instance, the physician must honor the judge’s order. If the subpoena is for records and the physician does not have his patient’s consent to release the records, the only way the physician can raise that objection is by filing it in writing with the court. Most often an attorney should be consulted to file a motion to quash the subpoena for lack of the patient’s authorization to release the records.

Note that in the case of written records, the subpoena or accompanying court papers may give a deadline for production of the records or filing of an objection. If no date for production is given, the physician usually has 30 days to produce the records or file an objection.

There is one other important point about written records. In the case of health records other than mental health, substance abuse or dangerous communicable disease records, the subpoena may be served with a motion to produce and an order for production signed by a judge. If these last two documents accompany the subpoena, the records may be produced without the patient’s consent. This means that everyone in the lawsuit, including the judge, has had notice of the request, no one has objected, the court has considered the matter, and ordered the release of the records. The only thing worse than ignoring a subpoena is ignoring a court order.

If the records sought are those for treatment of alcohol or drug abuse, they are not to be released without the patient’s consent or a court order issued after a hearing is held on the matter. The release of alcohol and drug abuse records is governed by federal law. Mental health records and those concerning dangerous communicable diseases may also require a court hearing to determine whether the records should be released without the patient’s consent. State laws differ as to the procedure to be followed, but most states require more than a subpoena or even a court order, issued without a hearing, in order to release these kinds of health records.

These rules and comments are not meant to exhaust all issues that may arise with respect to subpoenas and other requests for confidential records. State laws vary. The facts of any given situation are unique and may not have been anticipated here. They are, however, a practical start.

Phyllis Garrison, Esq., is a member of Bose McKinney & Evans’ Health Law Practice Group in Indianapolis, Indiana